Police and Justice Bill - Standing Committee D

[Derek Conway in the Chair]

Police and Justice Bill

Clause 12 - Conditional cautions: types of condition

Lynne Featherstone: I beg to move amendment No. 107, in clause 12, page 7, line 21, leave out ‘one’ and insert ‘two’.
The amendment tests the extent of the Government’s commitment to rehabilitation. It would make only a small change. The Home Secretary recently made a statement in the House, in which he told us that the Government are focusing on reducing reoffending. We believe that punishment tells individuals and society that certain forms of behaviour, or certain acts are not tolerated or acceptable. It should act as a deterrent. Without rehabilitation, however, it will not necessarily change behaviour.
I hope that all parties are in favour of changing such behaviour. Our ambition should be to convert offenders to become responsible members of society who will not reoffend, who will not engage in antisocial behaviour and who, ultimately, will not be a burden on the taxpayer. The caution is an alternative to entering the criminal justice system. It is a non-punitive means of encouraging people not to push their luck, to learn their lesson and to take a reprimand. However, it is a serious measure. It is a wake-up call, and a reprieve from the full arm of the law being extended. It gives the recipients a chance to change their behaviour.
Applying conditions to cautions would give us the opportunity to enshrine the Government’s message on rehabilitation and reparation. The amendment would allow that to be done statutorily rather than arbitrarily. At the moment, we have to use only one of the ways forward—perhaps punishment without rehabilitation—but the amendment would allow us to use more than one condition. We argue that it would be better for rehabilitation and reparation to become part of the process.
I seek a reassurance that cautions will not be misused. I acknowledge that a person has a choice whether or not to accept a caution, but the freedom to refuse a caution is likely to be limited by a person’s fear of prosecution. To a great extent, it is Hobson’s choice. I hope that the Minister will accept this small change, which would put flesh on the Home Secretary’s aspiration that rehabilitation should stop reoffending.

Hazel Blears: I understand the point that the hon. Lady is trying to make. It is clearly our intention  that conditional cautions should include conditions for rehabilitation, reparation and punishment, as set out in the clause. It is important that we send out the clear message that we want to change behaviour. The driving force behind all our policies on tackling antisocial behaviour is to ensure that, with enforcement and support, such problems do not occur in future.
Under the existing conditional caution scheme, conditions must be either reparative or rehabilitative, but they do not need to be both. Each decision has to be taken in relation to the offence, and the prosecutor has to decide what conditions are appropriate. Conditional cautions are entirely voluntary. It is up to offenders whether to accept them. The clause amends the scheme so that, in addition to rehabilitation and reparation, there is an element of punishment. It also recognises that, as in the existing scheme, it may be desirable to attach conditions that have more than one effect. For instance, if someone makes off from a filling station without making payment, we might want to impose a conditional caution that has a provision for compensation to the victim, which is a financial penalty; a fine, which is a punishment; and something that makes good the damage caused, which is reparative. The clause is designed to ensure that there is flexibility to put a range of conditions into the scheme.
There will be some cases in which only one condition is appropriate, which is why I want to reject the amendment. In the cases of a drug-misusing prostitute, we may want simply to rehabilitate. We may not want to punish, and it may be difficult to find reparative work that a drug-misusing prostitute may want to do. I am sure that the hon. Lady would accept that it is therefore important for the Bill to have sufficient flexibility to enable there to be only one condition in some cases.
Another example would be if somebody were guilty of a minor public order offence. The appropriate response could be a punitive condition requiring the offender to undertake unpaid work to clear up the mess in a town centre after a Saturday night. That is not reparative, because he might be clearing up damage that he has not personally caused. It would be perfectly proper for such conditions to be used in circumstances in which somebody has caused damage such as graffiti or vandalism. There must be flexibility to direct conditions towards only one of the objects set out in the clause rather than at least two, which would be far too restrictive and would not cover the range of offences at which the clause is targeted. I hope that the hon. Lady will consider that point and withdraw her amendment.

Lynne Featherstone: I am somewhat persuaded by the Minister’s argument. What she says is fair. In the long term I would like some monitoring of how the conditions to a caution are being applied, so that we  can watch performance and establish whether what she says should be happening actually is. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment No. 141, in clause 12, page 7, line 31, at end insert ‘and undertake specified activities.’.
This is essentially a probing amendment on the conditions that can be attached to a caution. I want to obtain some clarification on the intent behind clause 12. The clause mentions
“a condition that the offender attend at a specified place at specified times.”
The Minister has spoken of the need, for example, in drug-related offences, for someone to attend a centre and receive treatment. The explanatory notes state that that might include the completion of a specified activity. My amendment would put that concept into the Bill.
If a condition is attached to a caution requiring an offender to attend a drug rehabilitation treatment centre, some involvement must be required. Just turning up at a specified time and place may not be sufficient, because an offender may not wish to co-operate with the service or facility. If the condition is to achieve its stated aim of facilitating rehabilitation, ensuring that an offender makes reparation, or punishing him, it should not be limited to attendance somewhere at specified times. For example, in the case of somebody who has damaged a wall or written graffiti on it, the condition might be that he should attend at a specified place at a specified time to clean up the mess that he has created. That is a creative way of making an offender appreciate the harm or damage that his actions have caused. However, it seems strange that the only condition that can be attached—and that can, therefore, be breached—is to tell the person that he has to attend the specified place at the specified time, without going on to say, “and you will undertake certain specified activities,” so that, should he not co-operate, it would be clear that he had breached the condition.
I tabled the amendment in order to clarify the intent behind the provisions and to find out what teeth they have to enable them to be followed through appropriately, so that if reparation is required, reparation actually occurs. Similarly, rehabilitation will take place by virtue of the fact that somebody attends a clinic and receives treatment and support in order to change his ways, whether they result from a drug habit or another problem. I shall be grateful for the Minister’s clarification.

Hazel Blears: I hope to provide the hon. Gentleman with sufficient reassurance to enable him to withdraw his amendment. The purpose of conditional cautions is to deal with low-level offences and to ensure that conditions are attached that facilitate rehabilitation or reparation or impose punishment.
I understand the hon. Gentleman’s desire to ensure that, in addition to having to attend a specified place at a specified time, a person should carry out specified  activities—we envisage such things as drug rehabilitation, undertaking unpaid work or attending an anger management course. Clause 12(2) says that
“The conditions which may be attached to such a caution are those which have one or more of the following objects—”
and it states rehabilitation or reparation and punishment. The power to make general conditions is contained in that clause. New subsection (3A)(b) includes provision to ensure that an offender attends
“a specified place at specified times”.
That is to give us a peg on which to hang new subsection (3B), which includes provision for the offender not attend for more than 20 hours. We needed to specify a time limit. The general power to set conditions on what an offender should do is contained in a substantive clause by reference to the stated objects of the Bill.
If that has not given the hon. Gentleman clarity, I apologise. However, the power to make the conditions is set out by reference to the objects, and is therefore contained in the legislation—we specify time and place in order to provide ourselves with a legislative peg on which to hang the provision on the time limit, and a similar argument applies to the fine as well. Therefore, I can assure him that his amendment is superfluous. That is not his fault. However, given that the Bill as drafted enables us to ensure that the conditions can specify the kind of thing that he has set out, a breach will be a breach of the conditions and appropriate action will be taken. I hope that, on that basis, he will withdraw his amendment.

James Brokenshire: I am grateful for that clarification. I am reassured by the inter-relationship between the provisions. When one seeks to amend a statute—the Bill seems a little disjointed in terms of which bits are being amended and how it will all hang together subsequently—it is not necessarily clear whether something needs to appear in a certain part. The Minister has reassured me that, in essence, clause 12(2) sits alongside and supplements the additional measures proposed in clause 12(3). There is therefore no breakdown of the linkage between those two points. As she said, the objects are the fundamental driver and, therefore, the provisions on conditional cautions drive at what we have been talking about this morning. On the basis of that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Herbert: I beg to move amendment No. 137, in clause 12, page 7, line 38, at end insert—
‘(3A)In section 22(4)(a) after “constable” there is inserted—
“or, in the case of a condition which has an object under subsection (3)(c) above, an officer of the rank of sergeant or above”.’.
It is important that we have a debate on clause 12 and the principle of conditional cautions. Amendment No. 137 seeks to address a particular aspect of the operation of conditional cautions. At the moment,  they can be imposed by a police constable—an officer of any rank. My suggestion is in line with the one I made in relation to the street bail provisions that we discussed earlier. It is that a punitive conditional caution should be made only by an officer with the rank of sergeant or above. I shall explain why I think that that is a good idea—

Hazel Blears: I am loth to interrupt the hon. Gentleman, but perhaps it will help the Committee if I make it clear that the decision to administer a conditional caution is taken by the Crown Prosecution Service, not a police officer.

Nick Herbert: I am grateful for the Minister’s clarification, which might mean that the amendment is unnecessary. I should like, however, to make a number of general remarks about the operation of conditional cautions. Perhaps I should do that in a clause stand part debate.

Derek Conway: Order. If I can help the hon. Gentleman, I have not proposed the question on his amendment yet. If he does not want to pursue it, he does not have to. The Committee is entitled to a clause stand part debate, so if he wants to be more wide-ranging, I will be happy to ensure that he can make that contribution during that clause stand part debate. Of course, the decision is his.

Nick Herbert: I am grateful for your advice, Mr.d¤Conway, and in the circumstances, that is probably the best thing to do, because I tabled the amendment on the basis of a misunderstanding about the operation of conditional cautions. I would therefore prefer not to move the amendment.

Question proposed, That the clause stand part of the Bill.

Nick Herbert: On Second Reading, I expressed concerns about the operation of conditional cautions. Those concerns come under three parts, which it is appropriate for the Committee to consider in more detail.
First, concern has been expressed outside the House and by a number of hon. Members about the fact that the power to impose punitive cautions will effectively allow the police to act as investigator, prosecutor and judge. Hon. Members might have received a letter from the Magistrates Association, which said that it considers it to be
“contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities”.
The Magistrates Association also pointed out that the Secretary of State will be
“given powers to increase these potential penalties in the future. It opens up the possibility of more serious offences”,
than those currently proposed,
“being dealt with outside a court. This would mean that the prosecutorial authorities would be given extensive powers to impose penalties that should solely be the responsibility of the judiciary. It is an overriding principle of any criminal justice system that sentencing is for the judiciary”.

Michael Fabricant: Does my hon. Friend agree with the concerns that have been expressed by the Opposition, including, incidentally, the Liberal Democrats, that so much of the Bill is dependent on secondary legislation? I am referring to the Magistrates Association’s concern about what additional powers there would be. Although the Minister will no doubt assure us of the good intent of the present Home Secretary, having seen the film “V for Vendetta” last night, I can see the potential should a less benevolent Home Secretary ever be in power.

Nick Herbert: I am grateful, as always, for my hon. Friend’s intervention. I have not seen “V for Vendetta”, so I am not able to comment.
This is a serious issue. Many of the provisions in the Bill give Ministers powers, for example, as we have already discussed, in the reshaping of police authorities. In relation to such a big extension of summary justice, it is questionable whether the Government should have such a power. Perhaps the Minister will say more about that and the Magistrates Association’s concerns when she responds. That was the first of the concerns. The power is a big shift in the principle of justice, and one that we should not let go without considering it carefully.
The second concern that I set out on Second Reading was that the Prime Minister had said that summary justice would be tough and hard, when there is a question that it might mean softer justice. When using the provisions under the legislation for conditional cautions to attach punitive conditions, the maximum penalty will be £500, which may be an attractive alternative to an offender who might be given a stiffer fine or even a custodial sentence were the matter to go to court. Just as seriously, there is a danger that it will give rise to two-tier justice and that those who can afford to accept the conditional caution and pay a fine will do so, but those who cannot will not. Although a voluntary principle underlies the exercise of conditional cautions, it applies only to the extent that the offender might have the financial means to comply with the condition.
When we were debating street bail, I gave the example of a business man in my constituency who had been given a fixed penalty notice as a consequence of a warning by a police officer. He decided to accept that rather than travel to court because it was more convenient for him. He could afford to accept the fixed penalty notice, but others might not be able to. There is a danger that the provision could become a “get out of jail with your credit card” option, instead of one that is intended to exercise justice in an equal manner. Liberty points out:
“Since the conditions may include a financial penalty, there is a serious concern that this could lead to two tiers of punishment ... Those without the means to pay a fine attached to a caution could face prosecution while someone who could afford to pay the fine could avoid a criminal conviction by paying.”
My third concern was about how the cautions were to be exercised. My concern about that, which I expressed on Second Reading in relation to both conditional cautions and street bail, has been allayed by the Minister pointing out that the prosecution services are involved in conditional cautions, whereas that is not the case in relation to street bail. I am grateful for that. The concerns that I expressed about the seniority of the police officers concerned apply more properly to the street bail provisions. Provided that the Crown Prosecution Service is involved, it is not such a concern that a constable of any rank can exercise a caution.
However, before we allow this big transfer of justice and give far less say to the courts and far more say to the police in the exercise of summary justice, it is important that hon. Members stop to consider what that means. On Second Reading, I quoted from an article in The Daily Telegraph:
“According to one document circulating in Whitehall, about half of the two million cases heard by magistrates every year could be processed without the costly and time-consuming business of a trial.”
I do not know whether that suggestion relates, in terms of the number of offences, to the provisions in the Bill, or whether the Home Office is considering plans to extend summary justice further. Can the Minister comment on that report?
To clarify, the beginning of the report stated:
“Ministers are drawing up plans to bypass the courts in the handling of hundreds of thousands more low-level crimes. Defendants who plead guilty to most offences with non-custodial sentences would, under their proposals, be sentenced by prosecutors, in consultation with the police.”
I think that that refers to the proposal for conditional cautions, but the report went on, as I said, to say that about half of the 2 million cases heard by magistrates every year could be processed in that way. Is the report accurate? Does it refer to conditional cautions, or are there other proposals to extend summary justice further? We should scrutinise that significant development properly.

James Brokenshire: My hon. Friend raises interesting points about the development of summary justice. It is interesting to see the provisions in clause 12, and we have debated the objectives of conditional cautions. We are talking about an extension of the conditions that can be attached to cautions. In some ways, that reflects practical approaches undertaken in the summary justice system in Scotland, where it is possible for the procurator fiscal to attach fiscal fines. However, I understand that there is a fundamental difference with the system in Scotland inasmuch as the caution does not carry with it a formal acceptance of criminal liability, and does not have a criminal record attached to it, whereas a conditional caution in England and Wales would have that connotation. I suppose that the equivalent in Scotland would be a settlement out of court with no attachment of liability, albeit that the fiscal fine and the details of that could be provided to the victim of the crime and other interested parties.
I should be interested to hear from the Minister why the development that we are considering is taking place in England and Wales, in contrast with the slightly different system in Scotland. I should like to know what the logic is and what the thought processes were in developing the Home Office’s policies in that regard. How was that approach established?
There are questions about where the development may ultimately lead. When Bills such as the Legislative and Regulatory Reform Bill come before the House, we receive assurances in Committee about the scope and operation of the provisions, but there is a risk. The Legislative and Regulatory Reform Bill allows wholesale amendment of primary legislation without the need to return to the Floor of the House for full scrutiny of that. Such Bills make us somewhat cautious, because although we can understand the logic and the Minister’s explanations, we do not know where they may ultimately lead if there is the ability to amend them without full and proper scrutiny on the Floor of the House, if further amendments to primary legislation are required. It is important that the issue should be considered carefully and that the provision be given appropriate scrutiny.
I can see what is sought to be achieved. However, the question is whether that may subsequently be built upon and whether there will be any further erosion of the operation of the judiciary in this country’s system of justice, which I hope we would all accept as common ground, and which should remain an essential part of our democratic and free process. I hope that the provisions are not a precursor to a more expansive approach on summary justice and that they are intended, as the Minister says, to address low-level crime, which could be dealt with efficiently and without delay or expense, provided that that is done with the appropriate checks and balances, without the need formally to go to court, if that is accepted. I hope that the aim is to assist in the process of justice, rather than being a perhaps unintended Trojan horse for something more fundamental and sinister.

Michael Fabricant: My hon. Friends have already spoken quite eloquently about clause 12, but I have a concern about secondary legislation, which I mentioned in my intervention on my hon. Friend the Member for Arundel and South Downs (Nick Herbert). I am the first to accept that all Governments, of whatever colour, cannot have everything debated on the Floor on the House, as that would simply cause a logjam. However, whereas it is appropriate to have secondary legislation for setting levels of fines and that sort of thing, it becomes dangerous when it fundamentally reforms legislation.
My hon. Friend has already quoted the Magistrates Association, so I will quote only one more line. It says that secondary legislation
“opens up the possibility of more serious offences, rather than extremely low level ones, being dealt with outside a court.”
That clearly does not meet the requirements of natural justice, of the judiciary or of one’s peers making judgments. It would be fundamentally wrong if more serious crimes were included within the ambit of the Bill through secondary legislation.
The Minister told us in the previous sitting that we have a “benevolent” Home Secretary, but what serious assurance can she give us that no future Home Secretary—perhaps not because of his nature, but because of changing circumstances in Britain—will decide that he must bring more serious crimes under the auspices of clause 12, meaning that they could be dealt with outside a court? How can we be assured that there would still be a role for magistrates and Crown courts if there were changes in secondary legislation? What safeguards can the Minister give us to assure us that someone who was not as “benevolent” as the present Home Secretary—I use the Minister’s word, although some would argue that he is not so benevolent—would not extend the powers considerably?
Does the Minister agree that, in principle, it would be wrong for more serious cases to be dealt with in that way? If she sets out the principle, lawyers will always be able to say that a Home Secretary who is not benevolent and who tries to extend the powers beyond what is provided for in clause 12 is in breach of the spirit of the law. I should be most interested to hear what she has to say, first, about the spirit of the law and the principle and, secondly, about the safeguards that exist to ensure that the power is not extended.

Hazel Blears: Given the lobbying that goes on and the various representations that are made, it is understandable that debates tend to look at these matters from the point of view of the offender or the legal system. However, it is important also to look at them from the point of view of victims and the wider community.
The proposal to introduce conditional cautions was referred to in our respect action plan and is about ensuring that our system takes seriously offences that really affect people’s quality of life, such as graffiti, shoplifting, vandalism and low-level antisocial behaviour. It is about having sanctions, punishments, reparation, rehabilitation and restorative justice to deal with what is sometimes referred to as low-level crime, even though its impact on communities can be enormous.
The legal system is complicated, time consuming and sometimes bureaucratic, so offences and acts that cause people a lot of damage have not always been taken seriously. Sometimes, because of the time involved in processing a case, people have got away with such acts. The whole point of introducing measures such as conditional cautions is to ensure that we address these issues speedily and effectively, so that the victims and the community have a real sense that the system is working.
Let me give hon. Members one example, which relates to shoplifting, although not specifically to conditional cautions. In many cases, shoplifting has not been seen as a serious offence, but it is serious to the people involved. When we introduced a fixed penalty notice provision last year, there was an outcry because people thought that we were downgrading the offence; they thought that it was no longer a criminal offence because it was subject to a fixed penalty notice. In practice, however, shoplifting now has a sanction attached to it in far more cases and is easier to dispose of. Instead of the offender simply getting away with it, there is now a punishment, and I think that everybody recognises that that is a good development.
Similarly, in the case before us, we are talking about ensuring that the justice system takes antisocial behaviour extremely seriously. I make a plea to the Committee, and particularly to the Opposition, to look at the issue from the other end of the kaleidoscope for a change—from the point of view of the public and the victim, not the offender.

Michael Fabricant: I think that it is a little unfair of the Minister to accuse the Opposition of not taking account of the view of the victim. I agree with everything that she has said, other than her last remark, which was a little cheap and party political. Incidentally, the John Lewis Partnership—a company with which I have certain connections—very much welcomes the legislation to which the Minister referred. Will she, however, address the issue of using secondary legislation to deal with more serious issues? Although we must take the side of the victim, must we not also take the side of justice? The victim will not thank the Government if the wrong person is found guilty. The measures are wholly appropriate in the instances that the Minister gave, but we are asking about other crimes, which could come under the ambit of the clause as a result of secondary legislation.

Hazel Blears: I think that I have been very generous in allowing the hon. Gentleman to make his point yet again. He has made it previously, and I will come to it, if he will just have a little patience—[Interruption.] I think that I have been very generous to hon. Members in seeking to have a proper debate on these serious matters. It is important that we look at them properly.

Mark Pritchard: Will the Minister give way?

Hazel Blears: I will give way to the hon. Gentleman in a moment.
A conditional caution is not a court sentence or a criminal conviction, but an admission of guilt. The person who accepts the caution must accept the conditions, so it is a voluntary process. That deals with the point made by the hon. Member for Arundel and South Downs about there being a two-tier justice system in which a person who can afford to pay a fine will take a different kind of caution. The person has to agree to the conditions, whether they are punitive,  whether they concern compensation, reparation or rehabilitation. If they are not prepared to accept them, they always have the option of going to court.
The financial and unpaid work penalties are significantly lower than the fines that magistrates courts would be likely to impose. That is an incentive to get matters dealt with as speedily, effectively and efficiently as possible. It is important to ensure that our courts system works properly. If it does not and there is inordinate delay, it is brought into disrepute. The maxim that justice delayed is justice denied is as appropriate in criminal matters as in civil matters.
As the hon. Member for Hornsey and Wood Green (Lynne Featherstone) said, making the connection between the relevant behaviour and the punishment and rehabilitation as quickly as possible helps to change behaviour. If the sanction or penalty comes three or six months after the relevant low-level antisocial behaviour, it is difficult to make that connection. I agree with the hon. Member for Arundel and South Downs that the proposals are radical, but they will be significant in making a connection between the behaviour and the sanction, and showing the public that the criminal justice system works.
I envisage that, if someone commits criminal damage on a Wednesday evening, within a couple of weeks they might be out in the local park at the weekend putting right some other damage. I hope that such punishments will be carried out in a visible way, so that the community can see that such work is being carried out, and we can start to get some public confidence in the criminal justice system.
This is not about wandering into areas of serious crime; the hon. Member for Lichfield makes a fair point. There is clear guidance from the Director of Public Prosecutions about the kind of offences that should be subject to conditional cautions. Because the conditions are set lower than the fines and punishments that magistrates courts can impose, it clearly is not appropriate to stray into that serious crime area. The proposal is an innovative and radical departure to try to ensure that, at long last, we deal with some of the issues that have gone unnoticed, unpunished and untackled in the past, which has led to a diminution in public confidence in the criminal justice system that these matters are to be addressed.

Mark Pritchard: On that point about public confidence, whilst I do not doubt the motivation of the Minister and the Government with these new proposals, does she agree that there is public concern about the lack of fine money being collected under existing legislation, never mind under the proposed legislation? The public are also concerned that many people do not turn up to do the work required by their community service orders, and that they are never tracked down and never serve them. If we are to extend the use of fines and community service orders—albeit under a new name—surely there is an issue regarding the continuing lack of public confidence.

Hazel Blears: I am pleased to tell the hon. Gentleman that fine collection has improved dramatically in the past few years. We have had a number of high profile operations, such as operation payback, in which the Court Service and the national enforcement service stepped up the recovery rate of fines. He is right to say that the fines system fell into disrepute because fines were not being paid, but that has been tackled. I cannot give the current figures off the top of my head, but I think that collection rates are up to almost 80 per cent., which is a significant improvement. I am sure that we can do more on that.
The same notion applies to community service orders. I am absolutely convinced that, if we are to get the public to have confidence in community penalties, we must ensure that they are rigorous, that people complete them, that they are hard work and that they are properly enforced. We have a big programme to ensure that that happens. Community payback operates across the country, and there is more visible community punishment. My experience is that, when the public do not have a sense that community punishments are working, they do not have confidence that the system is on their side, so it is imperative that we ensure that the whole system works. We are determined to do that, and we are making significant progress in making that happen.
Opposition Members talked about the possibility of 1 million offences being diverted from the justice system into more forms of summary justice. We estimate that the number of conditional cautions will be around 30,000 a year, which is a small proportion of the figure mentioned in the reports. It is dangerous to take information from reports in TheDaily Telegraph.
The Government are looking at ways to process cases through the magistrates court system more effectively. Magistrates courts deal with a huge number of offences and when the custody plus provisions are introduced later in the year they will take on significant extra responsibility. Cases involving things such as TV licence fines, motoring offences, council tax arrears, can be batched together and dealt with more efficiently and effectively. Work is still in the fairly early stages, but we are considering how we might make that happen. I hope that that will have the support of all hon. Members: if we can free up magistrates’ time to deal with the cases that are contentious and have significant judicial impact, so much the better. Dealing with many cases is very much an administrative process, and if we can make the system work better we will do so. We will take a staged approach, however, because I am conscious of the need to ensure that the justice system is properly balanced between protecting the rights of the accused—until a person is found guilty he is not an offender—and the rights of the decent, law-abiding majority of people in this country. Rebalancing the criminal justice system in favour of victims and law-abiding people is something that we need to do and be seen to do.
I emphasise that throughout the process, the person who has admitted their guilt has the right of access to free legal advice, so we are not talking about vulnerable people being coerced into accepting a caution against their will. We are talking about speedy, common-sense disposal of a case and making sure that bad behaviour does not go unpunished. I hope that that has the support of the whole of the Committee. We are taking a radical step, but the Government and the people involved should be congratulated on having the courage to deal with the issue.
When cautions were introduced they were very useful. The proposed changes are the result of our experiences and of recommendations from the police, prosecutors and people involved in administering the schemes. We need to ensure that we have a variety of conditions that we can attach. There are safeguards in the fact that it will be the Crown Prosecution Service, not the police, exercising jurisdiction. There is proper guidance in place—the conditional cautioning code of practice was agreed by the House in 2004. The guidance sets out clearly the role of the Crown prosecutor in the process and the role of the police officers. Para 2.4 makes it absolutely clear that it is for the prosecutor to decide that a conditional caution is the right disposal and what conditions would be suitable. That has already been debated by the House.
With those safeguards, the proposed arrangement should be a welcome, imaginative and creative addition to the way in which we can use our criminal justice system to protect both victims and the wider public.

Nick Herbert: The Minister’s suggestion that we should consider not just the offenders or the courts, but the victims, is of course right—we must be mindful of the victims throughout our discussions on this Bill and others. The statement that there are victims suffering from antisocial behaviour and that the courts are too bureaucratic to deal with that serious problem could be used to justify any measure to try to shut the courts out, but it is not a sufficient argument in itself to justify any measure and it does not justify the measure that we are debating now. The question is whether the proposed measure strikes the right balance.
It is never acceptable for Ministers to use such arguments, but they used precisely the same arguments in relation to the 90-day proposals for the detention of terrorists. The House rightly took a different view: we had to debate what number of days was right and not just accept the general principle that, because it was necessary to deal with terrorism, an extension was bound to be justified. The question is whether the measure is proportionate and whether there are sufficient safeguards in it.
The Minister did not address my point people who can afford to pay will have the option of paying a lower fine, by way of the fixed penalty, than they might have received had they gone to court. The Minister conceded that by saying that the fines would be set at a lower level than if the matter were dealt with in court.  That will lead to people who can afford to pay fixed penalty notices finding them to be a convenient way of avoiding higher fines, while those who cannot afford to pay will be in a totally different situation. That is the two-tier nature of the proposal.

James Brokenshire: Does my hon. Friend agree that the system should be monitored continually and carefully to ensure that we do not end up in a situation where, for the sake of expediency, offenders are given a caution rather than taken through the full judicial process even where a tougher sentence might be more appropriate? The caution must not be overused. To ensure that justice and that the victims of crimes are properly served, offenders must continue be taken to court rather than handed conditional cautions.

Nick Herbert: That is precisely my point. Justice will not be served if an offender can get away with a lower level of fine by way of a fixed penalty when that is not merited. Magistrates are no longer to make those decisions—they will not be able to exercise their judgment on the proper level of fine for such offenders because they are not to be involved in the process. The decisions are to be taken only by the police with prosecutors.
The Minister said that the measure will free up magistrates’ time. One might, therefore, have expected the Magistrates Association to be terribly grateful for a measure to deal with the bureaucracy that confronts them, but they have not said that. Instead, they have expressed great concern about the fact that they are to be removed from the process altogether. That is a fundamental shift in the basis on which justice has been exercised in this country.
I am grateful for the Minister’s clarification that the press report that I mentioned referred not to the introduction of punitive conditions in relation to cautions, but to potential future changes through which there may be a further extension of summary justice. We look forward to hearing those proposals. The Minister said that she expected us to welcome them, but we cannot know that until we have sight of them.
It confirms—and we know this from the Prime Minister’s statements during news conferences and in the House—that a large change is under way which involves the appropriate level of punishment being decided, not by magistrates who are trained and qualified to make such decisions, but by prosecutors and the police. The only safeguard lies in the fact that the measure is voluntary—the offender can choose not to accept the fixed penalty and can opt to go to court. However, we must be concerned about those offenders who are less able to afford the possible fine or who find themselves coerced. By coerced, I mean that there is a serious danger that the police might overuse the measure to dispense summary justice and to deal with people they find troublesome, meaning that cases never reach court or, indeed, public attention.
It may be true that this measure will make it easier to deal with antisocial behaviour, and we should take it seriously. However, it will also change the balance of  how we dispense justice in this country, so it merits a serious debate. It is not sufficient argument to say that because antisocial behaviour is a problem, the change must be merited and anybody who cares about antisocial behaviour must be in favour of it.

Mark Pritchard: The issue of coercion and confusion is most pertinent. Is my hon. Friend aware that some people, rather than go to court, have accepted cautions, which are then revealed by a Criminal Records Bureau check when they go for a teaching post, for example, although they were not told at the time that the caution would form part of a CRB check? At least six or seven people have told me that because they believed they were innocent they would have gone to court, but they did not want to go through that process and therefore settled for a caution; however, they would not have done so if they had known that it would have an impact on their livelihoods every day of the week.

Nick Herbert: I am grateful to my hon. Friend for that very good example of a situation in which people will settle for cautions that they might not otherwise have been willing to accept.
If, as the Minister suggests, the processes that involve bringing people to court are over-bureaucratic, it behoves us to examine those process and to decide how cases can be speeded up. However, to shut magistrates courts out altogether is a much more radical option. I am grateful that we have had this opportunity to discuss the matter.

Lynne Featherstone: Does the hon. Gentleman agree that if we are to accept the proposed shift in the way of dealing with some antisocial behaviour to admit the possibility of a swift reaction, there should be very strict auditing of the cases involved and the cautions and conditions that are applied? We would then be able to analyse those cases retrospectively to see whether what the Minister says will be applied is actually applied, and ensure that summary justice does not overstep the mark and apply in cases that should really go through the courts.

Nick Herbert: The hon. Lady raises an interesting question: the extent to which it will be possible to scrutinise publicly how the cautions are exercised, because these cases will be almost private matters between the prosecutors, the police and the offender, whereas when a case is heard before a magistrates court it is a public matter. That is an interesting example of an element of scrutiny that we have not really discussed and to which the Minister might like to respond. There may be ways in which the exercise of the conditional cautions can be scrutinised.
I am grateful for the opportunity to make wider points about the exercise of the conditional cautions. The whole House should watch the results of this measure and the process very carefully as the extension of summary justice is developed in the years ahead.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Clause 13 - Arrest for failing to comply with conditional caution

Nick Herbert: I beg to move amendment No. 147, in clause 13, page 9, line 28, leave out subsection (6).
I tabled the amendment in response to a point made by the Magistrates Association about the operation of conditional cautions relating to the ability of the police to arrest someone without warrant and then to detain them while they are investigating a breach of the conditional caution, which is a power given in subsection (6). The Magistrates Association says that it gives the police greater power in dealing with a breach of the caution than the courts have in dealing with the breach of an order that they impose. It is questionable whether the police should be given such powers of detention and I wonder what safeguards there are in relation to the exercise of the power. For how long will the police be permitted to detain someone for a possible breach while they investigate the possibility—only the possibility—that a breach has occurred? That is an important question.
We must remember that the police will be able to exercise those powers of detention without any supervision by the courts. The courts will not have been involved at all. A conditional caution with a punitive element to it will have been imposed with the agreement of the offender. Once it is in operation, if the police believe that it has been breached, they can detain the offender for a period—I am waiting for the Minister to tell us how long that period might be—while they investigate it.
I should be grateful if the Minister told us what safeguards will operate in the exercise of the power in question. Is the Magistrates Association’s concern a proper one? Is it right that the police should have greater powers in relation to breaches in such cases than magistrates do in relation to breaches of court orders?

Michael Fabricant: I listened to the Minister speak on clause 12 and I understand and sympathise with her argument, because a considerable amount of poor behaviour, which needs to be controlled, goes on. I can imagine that clause 13(6) might apply in a case of someone with a can of paint for writing graffiti: the policeman holding that person might want to find out whether he was in breach of a conditional caution. However, I repeat the point made by my hon. Friend the Member for Arundel and South Downs: surely there must be a time limit.
I am sure that in practice it will be very quick. I imagine that the police officer will find out the name of the chap, or sometimes the lady, concerned, he will use his mobile phone and get a response within two or three minutes, and go on from there. However, things can go wrong. Let us suppose that for some reason the records are not accessible—say, the computer is down.  I am surprised that a time limit is not specified in the Bill. An hour or an hour and a half is quite a long time to detain someone in that way.
I seek reassurance from the Minister about how long detention would be in practice and what she would regard as an unreasonable time for which to detain a person in that way. If she makes that clear in Committee, we shall be reassured; we can be pretty clear in our minds that if the provisions are abused, lawyers will be able to quote from the Minister’s remarks in Committee Hansard and show that the spirit of the Act—if the Bill is enacted—has been broken.

Hazel Blears: I hope that I can give hon. Members some reassurance. It is a matter of practicality, as the hon. Member for Lichfield (Michael Fabricant) has outlined. The provision will often be used for a quick inquiry to ascertain whether conditions have been breached, so that the process can go ahead. It would be illogical if someone who had been arrested had to be released and rearrested so that the breach of the original condition could be dealt with. We are trying to get the balance right between a proper system with safeguards, checks and balances, and getting matters dealt with as quickly as possible. That is the imperative throughout the system.
Subsection (6) specifies
“the power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether he has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution.”
When the detention becomes unnecessary for the purpose of those investigations it becomes unlawful. It is lawful only for as long as it is necessary for the carrying out of the inquiries. It would be unreasonable of me arbitrarily to suggest what I would regard as reasonable or necessary in any one of 100 different circumstances that could arise when the police had to carry out inquiries to establish whether a condition had been breached. The essence of the matter is that it relates to the specific case that a police officer is dealing with.
As long as the detention is necessary to allow the inquiries to be carried out, the officer will be within the legal framework set out in the clause. Once the matter strays into an area where detention is no longer necessary, the detention will be unlawful, and open to challenge in a range of ways.

Michael Fabricant: What the Minister says is reassuring, up to a point, but what about the scenario that I mentioned earlier, where a computer goes wrong, or the battery goes flat on the police officer’s wireless or radio control system? I can think of a series of scenarios in which things go wrong. It is right and proper that someone with a paint aerosol—the example that I gave earlier—should be held, but only up to a limit. How long will it be for—half a day, a day, two days? Surely some safeguard has to be built in.

Hazel Blears: It would be difficult to put an arbitrary limit in the Bill because, as the hon. Gentleman knows, circumstances could vary enormously. We envisage a person being held for a relatively short period, to allow the police to carry out quick inquiries into whether the conditions had been breached. It would be a ridiculous state of affairs if the police had to release someone automatically and then rearrest them, when a quick phone call or a quick inquiry could ascertain whether the conditions had been breached in order for the original prosecution to be brought.
It is a matter of practicality. I would not want the police to detain people for inordinately long periods in order to carry out inquiries. The safeguard is that the police must always be aware of this question: “Am I detaining this person for as long as necessary in order to carry out my inquiries?” That should act as a proper check and balance in the circumstances. I genuinely do not feel that putting one hour or two hours in the Bill would make it a good provision.

Mark Pritchard: What, in the Minister’s view, is an unnecessary or inordinate period for which a person could be detained?

Hazel Blears: If the inquiries have been carried out and the person is still detained, but not for the purpose of carrying out inquiries, that would not fall within the clause. The police have the authority to detain someone only for the period necessary for them to carry out their inquiries. It is inappropriate for me to speculate about the circumstances in which that might occur. The people making that judgment will be those involved at the time, in the context of the relevant circumstances.

Mark Pritchard: Clearly, people who have done wrong need to be detained if one cannot determine who they are, where they live and so on. However, as my hon. Friend the Member for Lichfield rightly asked, should there not be a limit? It is a reasonable question. For example, if a police shift was changing at a particular time of night, or if it was called away to an emergency—perhaps a terrorist incident—would the person have to remain in custody for 24 hours or 48 hours? What is the limit? Those are good examples.

Hazel Blears: The hon. Gentleman invites me to speculate but, as I said, it is not appropriate for me to do so. If investigations are likely to be protracted and lengthy, the individual can be bailed. The provision is designed to enable a quick, on-the-spot inquiry to take place. In the vast majority of cases, an hour or a couple of hours will be sufficient, but I cannot say categorically that it will be so; it will depend on the circumstances of the case. However, if protracted inquires are needed, other provisions are available.
The purpose is to ensure that low-level antisocial behaviour is dealt with and that those who breach the conditions of their cautions can be kept in the police station while officers make inquiries. It is a common-sense approach, which will be hugely welcomed by the public.

Martin Horwood: The Minister continually uses words such as protracted and lengthy, but if the provision is to be justified by the length of time that it takes to carry out inquiries, we must be told what those words mean. For instance, under other circumstances, the Government argued in the House that inquiries can take as long as 90 days. I presume that the Minister does not envisage such a period, but will she ever define protracted, lengthy or appropriate—in secondary legislation, if not in the Bill?

Hazel Blears: I ask the hon. Gentleman to maintain a sense of proportion. We are talking about low-level offences—guidance to prosecutors from the Director of Public Prosecutions makes that clear. Attempts by hon. Members to exaggerate the problems are not to the point. The system will give us efficient, speedy, effective justice when it comes to the things that the public are sick and tired of not being dealt with at all. The safeguards are there, and I ask the hon. Gentleman to withdraw the amendment.

Nick Herbert: I have listened carefully to the Minister’s reply, including her ticking us off for not having a sense of proportion. I would remind her that the Magistrates Association described the proposed power as draconian, so I do not think that it is fair to say that we are exaggerating concern about it. I accept that it is practical to adopt a measure to ensure that the police can investigate potential breaches; that is our purpose here, and we all agree that it is desirable. However, the Minister is relying on the concept that all that has to happen to justify a lengthy detention is that it has to be “necessary” for the police to conduct that investigation. The test of necessity is not sufficient to allow detention by the police without any kind of court supervision. Somebody who voluntarily agrees to a conditional caution could suddenly be detained by the police, not for breach of a conditional caution—we accept that the police should have the ability to do that for a breach; it is important that measures such as this, including antisocial behaviour orders, be backed up with robust powers so that they can be properly enforced—but simply to investigate whether a breach has occurred.
It is surprising that no time limit is specified. Such a limit might be arbitrary, but we have arbitrary time limits for detention throughout the criminal justice system. The police cannot indefinitely detain people in the course of the routine investigation of offences. After a period, people must be released, unless the courts grant an extension. Our system accepts that to detain somebody is a sufficiently serious matter that it has to be prescribed; the power to detain cannot be open-ended. I acknowledge that it is the Minister’s intention that the detention should be for a relatively short time; I do not attribute to her any wish to detain offenders for longer. However, Parliament must be careful before granting the police the ability, on their own judgment, to detain people for indefinite periods, and to tell such people who object to seek judicial review—to go to the courts and say that they were detained for an improper length of time—because that  is the only remedy available to them if the police exceed their powers. Of course, there is a danger that the measure will be abused if we grant the police an unsupervised power to detain people while they investigate breaches.
The Minister should accept that our concerns are serious. I invite her to consider whether it is necessary to specify a time limit in the provision. There is time to reflect upon that before Report. I do not want to oppose the measure wholesale, which is what the effect of my amendment would be, because I accept that a provision that allows detention for investigation might be desirable. However, the clause is problematic as currently drafted. The case has been made by a number of hon. Members for some sort of check to be imposed, and I would ask the Minister to reconsider the matter. Meanwhile, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

New Clause 3 - Establishment of the Inspectorate of Data

‘(1)There shall be a body to be known as the Inspectorate of Data (“the Inspectorate”).
(2)The role of the Inspectorate shall be—
(a)to request information granted under section 32(2) of the Immigration, Asylum and Nationality Act 2006,
(b)to request information granted under common law or section 115 of the Crime and Disorder Act 1998 for the purposes of Automatic Number plate recognition,
(c)to make any request under paragraph (a) above no more frequently than every three calendar months, and
(d)to use such information provided under paragraph (a) to produce a report that shall be laid before both Houses of Parliament once every six calendar months.
(3)The Inspectorate shall consist of—
(a)a Chairman appointed by the Lord Chancellor after consultation with the Information Commissioner, and
(b)a number of deputy chairmen of an odd number no less than 3 appointed as the chairman may determine.
(4)The Chairman shall—
(a)have a 7 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, and
(b)be a person who has an interest in data analysis and information protection.
(5)The deputy chairmen shall include—
(a)persons who shall represent the interests of data controllers, and
(b)persons who shall represent the interests of data subjects.’.—[Lynne Featherstone.]

Brought up, and read the First time.

Lynne Featherstone: I beg to move, That the clause be read a Second time.
We return to the balance between the need to do certain things speedily and without a lengthy process of judicial oversight, and the need to ensure that people do not overstep the mark and that the new measures are not abused. There is a clear trend, which we support, of dealing with cases speedily so that they do not become trapped in a long process and so that the system is effective.
The new clause follows on from a previous amendment and debate and relates to the extension of data collection. Domestic flight passenger lists will be available on request, without any crime having been committed, to police forces. We support the Government’s intention, but again we want some scrutiny of what is done without the normal protections of the criminal justice system or judicial oversight. We want to include safeguards in the Bill to prevent access to domestic flight passenger lists from becoming routine, overextended and overused and to prevent such data from being targeted disproportionately or used inappropriately for reasons other than preventing crime or disrupting terrorism.
I do not expect the Minister to accept the new clause; it is a probing amendment. However, I look to her to introduce some oversight, some close scrutiny, some method of redress that will give the public confidence and send a message to those with access to the information not to use it lightly.
We suggest establishing a body that would oversee, monitor and check with rigour that the collection of data was appropriate in all ways. There could be unease about the collection of private information when no crime has been committed. Mistakes could be made as a result of faulty technology. There is concern on the part of certain communities, particularly the Muslim community, which already feels targeted because of the conditions that have prevailed and the many measures that have been instituted since 7/7. There has been an explosion—a 300 per cent. increase—in stops under section 44 of the Terrorism Act 2000, whereby a police officer can stop someone without reasonable grounds; such stops are not covered by the normal stop-and-search provisions. There are communities that feel targeted, which can lead to dysfunctional and bad relationships. We want a body that will provide rigorous oversight and audit.
I am sure that the Minister would wish to put safeguards in place to reassure all those who might otherwise fear that the extra surveillance might cross the line. Obviously, the prevention of crime is a legitimate aim in relation to article 8 of the European convention on human rights, which relates to the right to a private life. However, given that part of the purpose of collecting such data is to detect patterns in travel so that potential terrorist action can be disrupted, we seek a framework for monitoring and audit of the process. We agreed in the previous debate that speed was of the essence with regard to successful and lawful prevention of crime or disruption of terrorism and that a balance needs to be struck between people’s freedoms and the need to be vigilant to protect our nation from terrorism and to protect people from crime.
On Second Reading, I referred to a letter that my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) received from the Home Office. It stated that clause 9 was
“not designed to allow the routine surveillance of all domestic passengers. The police will only request data on the domestic routes that are of operational interest and likely to provide the greatest amount of intelligence essential to combat terrorism and serious organised crime. They are not designed to keep track of all domestic passengers.
They will help the police gain effective intelligence on the movement of known terrorist suspects and criminals and will allow them to build up a detailed picture of suspect passengers, travel patterns and networks.”
Although the letter suggests that there is absolutely no intention of blanket use of the power, the police officer who came to the Home Office briefing believed that the purpose was to build up a detailed pattern.
I hope that the Minister understands that I am trying to balance the need for protection with the need to protect the rights to a private life set out in the European convention and to examine how far the step would be from the promise in the Home Office letter to use the power only when tracking a “person of interest” to the illegitimate use of the power to track everyone, perhaps particularly those with Muslim-sounding surnames. That has to be a concern, which is why there should be a body in charge of a retrospective examination. I ask the Minister whether she has considered establishing an independent body to oversee the collection of information.
In the letter, we were told that
“requests for information will be recorded and there will be a clear audit trail to safeguard against ‘fishing trips’. And that in addition only police officers of the rank of superintendent or above may authorise a request.”
The new clause is designed to extend that protection and ensure that people retain the right to a private life, but not to inhibit the Government’s good intentions.

Michael Fabricant: I understand what the hon. Lady is saying about fishing trips, but surely there must be some degree of surveillance? There will be times when the security services and the police have surveillance on someone who turns out not to have been doing anything wrong. It is a question of public protection, and while I understand what the hon. Lady is getting at, surely we must allow the police some leeway and not inhibit them so much that they cannot perform their task of protecting the public.

Lynne Featherstone: I totally agree with the hon. Gentleman. I am trying to allow that freedom and speed but to add a safeguard against what happened under section 44 of the Terrorism Act 2000. It was not ill-intended, but the effect on communities was damaging. I am sure that the Government agree that we must be sensitive to our communities while not inhibiting the police’s ability to look, even if they are seeking patterns. There would be public concern if every domestic flight passenger list was fed into a computer and every name tracked.

Mark Pritchard: Why?

Lynne Featherstone: Well, perhaps not. We want to achieve a balance.
The new clause would also cover automatic number plate recognition.

Michael Fabricant: I am sorry to prolong the debate, but what objection would the hon. Lady have if there was automatic number plate recognition where she was driving? That would not bother me, nor would it if people were making a note of where I go on holiday, which I am sure they probably are. So what? Computers can do these things, and if it protects society, let us do it.

Lynne Featherstone: I take the view that it is better to know and debate such matters than to create a police surveillance society without the benefit of public and parliamentary debate. My hon. Friend the Member for Carshalton and Wallington (Tom Brake) did a lot of work on the matter, and in 2005 figures revealed that more than one in five motorists have been wrongly identified because of flaws in police databases. It is a  little specious and unkind to say that there should be no checks and balances such as those proposed in the new clause. As the hon. Member for Lichfield has said, problems sometimes occur with technology. We therefore need to ensure that there is rigorous oversight and that people are not tracked wrongly or without their knowledge and without a public debate.

Hazel Blears: The new clause would establish a new body, the inspectorate of data. As the hon. Lady anticipated, I am not in a position to agree with her that there should be yet another body. We are constantly trying to reduce bureaucracy—

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.